Indigenous people, local government and other constitutional issues

Diane Spooner, Law and Bills Digest Section

Constitutional recognition of Indigenous people

During the course of the election campaign both major parties
made announcements about constitutional recognition of Indigenous
people. The Coalition promised to hold a referendum at the 2013
election on the wording of a preamble in the Constitution to
recognise Indigenous Australians, and the ALP promised to set up an
expert panel to build support for the constitutional recognition of
Indigenous people.

In the agreement with the Greens reached with the Government
since the election, they will work together and with other
parliamentarians to ‘hold referenda during the 43rd
Parliament or at the next election on Indigenous constitutional
recognition and recognition of local government in the
Constitution’. The Greens announced that they would be
consulting widely with Indigenous organisations and constitutional
experts on the nature of the constitutional recognition.

Amendment to the preamble of the Constitution is different from
amending the Constitution itself, although it is generally accepted
that the same process of holding a referendum would be necessary
under section 128 of the Constitution. The way the agreement above
is couched suggests that amendment to the preamble is the intended
approach in relation to Indigenous recognition, and amendment to
the actual Constitution is the intended approach in relation to
local government recognition. A preamble does not have direct legal
effect or give rise to substantive rights and obligations but may
be used as an aid to interpretation or to resolve ambiguities.

During the 42nd Parliament, the House of Representatives
Standing Committee on Legal and Constitutional Affairs conducted
its Inquiry into Constitutional Reform. One chapter of its report
was devoted to Indigenous recognition and nation building through a
new preamble.

Recognition of Aboriginal and Torres Strait Islanders in the
preamble was put to a referendum in 1999, as part of a whole new
preamble. The proposed preamble included that the Australian people
commit to ‘honouring Aborigines and Torres Strait Islanders,
the nation’s first people, for their deep kinship with their
lands and for their ancient and continuing cultures which enrich
the life of our country’. The relevant Bill also amended the
Constitution to make it clear that the preamble had no legal effect
and could not be used to interpret the Constitution or any laws of
the Commonwealth. However, the referendum was unsuccessful.
Victoria and Queensland have similar recognition in their
constitutions, and New South Wales is in the process of doing so as
well.

There are strong views that the racist and redundant section 25
of the Constitution should be repealed at the same time as any
referendum on these issues. This provision has reference to
disqualification from voting of a person on the basis of his or her
race.

Constitutional recognition of local government

The question of constitutional recognition of local government
has unsuccessfully put to the people in referenda, twice.

In 1974 the question put was whether people approved a proposed
law to alter the Constitution to enable the Commonwealth to borrow
money for, and to grant financial assistance to, any local
government body (financial recognition). The Bill was opposed by
the Liberal and Country parties in the House of
Representatives.

In 1988 the question put was whether people approved a proposed
law to alter the Constitution to recognise local government. The
actual proposed provision to be inserted was in the following
terms: ‘Each State shall provide for the establishment and
continuance of local government bodies elected in accordance with
its laws and empowered to administer, and to make by-laws for,
their respective areas in accordance with the laws of the
state’ (institutional recognition). The Liberal/National
Party opposed the amendment. This proposed amendment was not for
the Commonwealth to have a direct relationship with the local
government tier of government, but was rather seeking to entrench
the existing situation of local governments being creatures of the
states. In other words, it was not seeking to cut the States’
middleman role. Another option could be for symbolic recognition
where local government could be referenced in the preamble as being
acknowledged as being part of the governance structure of the
nation.

Constitutional change

Constitutional change by way of referenda held pursuant to
section 128 of the Constitution is difficult except when there is
widespread and bipartisan support. Only 8 out of 44 have been
successful. In essence, to be successful a proposed law must be
passed by an absolute majority of both Houses, or by one House
twice, and at a referendum passed by a majority of people as a
whole and by a majority of the states (that is, at least four of
the six).

An absolute majority of the House of Representatives will be 76
votes; in the Senate it is 39. In the new Parliament it may be of
some significance that either chamber could go solo on
constitutional change, without the support of the other, if it can
achieve an absolute majority. In this Parliament the opportunity to
do so in either chamber is quite novel.

The Speaker’s vote in the House of Representative could be
of vital and critical importance. Under section 40 of the
Constitution the Speaker does not vote except when the numbers are
equal, then he or she has a casting vote. There is a view that the
Speaker who does not have full voting rights should not be included
in the number of votes required for an absolute majority which
would reduce the number to 75 votes in the House.

The other aspect of this is that under the agreements with the
Greens and Independents, the Speaker and Deputy Speaker can
participate in Private Member’s Business but cannot vote. It
is possible in the new Parliament that a Private Member’s
Bill can achieve sufficient support in the House, for example Mr
Katter’s Bill on Constitution Alteration (Just Terms) or Mr
Abbott’s bill to overturn the Wild Rivers Act 2005
(Qld) (which it should be noted, does not entail constitutional
change).